Defense Digest

Municipal Liability for the Statement of One Depends on the Authority Given by the Many

In LaVerdure v. County of Montgomery , 324 F.2d 123 (April 2, 2003), the Third Circuit Court of Appeals considered the liability of a County for the comments of a single member of its Board of Commissioners.

The dispute in LaVerdure arose out of an E. coil outbreak at a farm in Montgomery County that sickened numerous children. The plaintiff was a Disease Intervention Specialist with the Health Department. She received telephone reports of the outbreak from parents of the afflicted children, but failed to follow up on those phone calls or otherwise adequately investigate the outbreak. The three-member Montgomery County Board of Commissioners, Montgomery County's executive body, unanimously decided to fire the plaintiff at a Board meeting on November 30, 2000. Following the meeting, the chairman of the Board, Michael Marino, spoke at a press conference and rebuked plaintiff. Id. at 124.

The plaintiff commenced suit alleging that the County violated her Fourteenth Amendment rights by denying her a name-clearing hearing, for which 42 U.S.C. §1983 provides a cause of action. The plaintiff also asserted a supplemental state law claim for libel and slander. The district court dismissed both claims and the plaintiff appealed. Id. at 125.

The Third Circuit Court of Appeals affirmed. With regard to the plaintiff's §1983 claim, the court began by noting that a municipality can be subjected to liability for civil rights abuses only if it caused a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id., at 125, citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). As a result, the relevant question was whether Commissioner Marino acted as a policymaker for Montgomery County when he rebuked the plaintiff. To answer this question, the court looked to state law defining the powers of county commissioners. Specifically, the court focused on a Pennsylvania statute, 16 Pa. Cons. Stat. § 504, which provides that only a majority of the three-member Board is authorized to establish policy on behalf of the County. Since Marino could not alone make County policy, the court concluded, his comments did not constitute County policy. Id. at 125-126.

The court did emphasize that, while Marino himself cannot make policy, he could nonetheless be liable under §1983 if other members of the Board of Commissioners authorized him to speak for the Board or acquiesced in his statements. However, the plaintiff made no effort to prove delegation or acquiescence; in fact, she never even deposed the two other members of the Board or called them to testify at trial. Since Marino was not a policymaker, and since the plaintiff failed to prove that the Board delegated authority to him or acquiesced in his statements, Montgomery County could not be liable for his comments under §1983. Id. at 126.

With regard to the plaintiff's defamation claim, the court held that Commissioner Marino was clearly entitled to absolute immunity as a high public official. In so holding, the court rejected the plaintiff's claim that it was inconsistent to hold that Marino was not a policymaker for purposes of §1983 liability, but that he was a high public official for purposes of state law defamation. In pressing this argument, the plaintiff emphasized that policymaking authority is one factor to be considered in determining whether one is a high public official. Thus, the plaintiff maintained, the finding that Marino was a high public official necessarily established that he was a policymaker, and it was incongruous to hold that Montgomery County could not be liable under §1983 because Marino was not acting as a policymaker when he rebuked the plaintiff.

In rejecting this claim, the court explained that "policymaker" is defined differently by federal §1983 and state defamation law. To be a policymaker for §1983 purposes, an official must have final policymaking authority. By contrast, to have immunity as a high public official, one need only be a policymaker. This difference stems from the fact that absolute immunity is intended to prevent undue restrictions on an official's ability to perform his duties. In contrast, §1983 seeks to ensure that local governments will not be held responsible unless there is a policy or sanctioned practice of the government itself. Unlike the goal of immunity, the federal policy limiting municipal liability counsels in favor of a narrower definition of policymaker. Since the definitions are different, a finding that one is a high public official for purposes of immunity does not preclude a finding that an official is not a policymaker under §1983.

* John is a shareholder and the managing attorney of our Post-Trial and Appellate Advocacy Practice Group. He works in our Philadelphia, PA office and can be reached at (215) 575-2609 or jhare@mdwcg.com.